First Amendment
Background The First Amendment to the U.S. Constitution provides that: :“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This language restricts government both more and less than it would if it were applied literally. It restricts government more in that it applies not only to Congress, but to all branches of the federal government, and to all branches of state and local government. It restricts government less in that it provides no protection to some types of speech and only limited protection to others. Gambling Gambling implicates First Amendment free speech concerns on two levels. Gambling is communicative by nature. Gambling also relies on advertising and a wide range of auxiliary communication services. Historically, gambling itself has been considered a vice and consequently beyond the protection of the First Amendment. There is every reason to believe that illegal gambling remains beyond the shield of the First Aendment. Gone, however, is the notion that the power to outlaw a vice includes the power to outlaw auxiliary speech when the underlying vice remains unregulated.Greater New Orleans Broadcasting Ass’n v. United States, 527 U. S. 173, 182 (1999) (noting that 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), “rejected the argument that the power to restrict speech about certain socially harmful activities was as broad as the power to prohibit such conduct.” The U.S. Supreme Court made this readily apparent when it approved an advertising ban on gambling illegal at the point of broadcast,United States v. Edge Broadcasting Co. 509 U.S. 418 (1993). but invalidated an advertising ban on gambling lawful at the point of broadcast.Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173 (1999). Greater New Orleans adopted the "Central Hudson" test: “At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” Id. at 183. Although the Court’s decisions acknowledges the ambivalence of American gambling policies,“The operation of U.S.C. §1304 and its attendant regulatory regime is so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it.” Greater New Orleans Broadcasting, 527 U.S. at 190. they do not appear to threaten the basic premise that the First Amendment permits Congress to outlaw gambling in any form (including Internet gambling) and to ban any speech incidental to illegal gambling. Privacy First Amendment principles also bear on privacy, both in the sense of protecting it,See, e.g., Frisby v. Schultz, 487 U.S. 474 (1988) (using privacy rationale in approving governmentally-imposed limits on picketing of home). but more often in terms of overriding privacy protection in the interests of protecting speech and press.See, e.g., Florida Star v. B. J. F., 491 U.S. 524 (1989)(newspaper could not be liable for violating state privacy statute when it published the name of a rape victim that it had lawfully obtained through public sources). References Category:First Amendment Category:U.S. Constitution Category:Gambling